Davis v. State, NUMBERS 13-15-00355-CR

• Decision Date: 01 June 2017
• Docket Number: 13-15-00356-CR,NUMBERS 13-15-00355-CR
• Parties: Steven DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

533 S.W.3d 498

Steven DAVIS, Appellant,

v.The STATE of Texas, Appellee.

NUMBERS 13-15-00355-CR

13-15-00356-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed June 1, 2017

Discretionary Review Refused November 15, 2017

Hon. Amanda Erwin, The Erwin Law Firm, L.L.P., San Marcos, for Appellant.

Hon. Paul Watkins, County Attorney, Hon. Keri L. Miller, Asst. County Attorney, Gonzales, for Appellee.

Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

Opinion by Justice Hinojosa

Appellant Steven Davis appeals his convictions for aggravated assault with a deadly weapon, a second-degree felony, and assault family violence, a third-degree felony.¹ See TEX. PENAL CODE ANN. §§ 22.01, .02 (West, Westlaw through 2015 R.S.). Both convictions were enhanced by appellant's status as a habitual felony offender. See id.§ 12.42(d) (West, Westlaw through 2015 R.S.). A jury returned a guilty verdict on both counts and assessed punishment of concurrent terms of sixty years' imprisonment in the Texas Department of Criminal Justice-Institutional Division. By three issues, appellant argues: (1) there is insufficient evidence that the appellant and the complainant were members of the same household; (2) there is insufficient evidence that appellant used or exhibited a deadly weapon; and (3) appellant's trial counsel was ineffective. We conclude that cellmates in a jail are not members of the same household under the assault family violence statute and that there is legally insufficient evidence that appellant's hands were used as a deadly weapon. Therefore, we reverse and remand to the trial court to reform the judgment to reflect a single conviction for assault causing bodily injury and to conduct a new punishment hearing.

I. BACKGROUND

This case arises out of a physical altercation between appellant and Vernon Pullin, appellant's cellmate. A grand jury returned an indictment alleging that appellant had committed aggravated assault by causing bodily injury to Pullin, while exhibiting or using a deadly weapon; "to-wit, hand(s)."² Under a second count, the indictment alleged appellant committed assault family violence against Pullin, "a member of [appellant's] household," and appellant was previously convicted of an assault involving family violence.

The following evidence was adduced at trial. Appellant and Pullin shared a Gonzalez County jail cell. Jailers removed the television from their cell due to Pullin's verbal abuse of jail staff. Appellant complained to the staff that it was unfair for him to be punished for Pullin's actions. Appellant asked Officer Corey Fonseca to remove him from the cell or "problems ... would occur." He also informed Corporal Gracie Rodella that if the staff did not remove Pullin, appellant would "handle it himself." Neither Pullin nor appellant was removed, but Corporal Rodella instructed Officer Fonseca to monitor the cell. Sometime later, Pullin knocked on the window of the cell and asked to be removed, but his request was again denied. After Pullin attempted to alert jail staff a second time, Officer Fonseca opened the curtain to the cell and observed appellant strike Pullin in the back of the head with his fist causing Pullin's head to hit the ledge of the window. Officer Fonseca observed appellant "throw[ ] a few punches" to Pullin's face and chest area while Pullin "cover[ed] up" in a defensive position. Officer Fonseca called for backup and then entered the cell with Corporal Rodella and Officer Devon Taylor. The officers observed appellant hitting Pullin, whose hands were in front of his face in a defensive position.

Appellant backed away when the officers entered, and they were able to remove Pullin from the cell. A jailer later transported Pullin to the hospital where he received stitches to treat a laceration to his nose. Pullin also suffered bruising to his left temple and a black eye.

Pullin testified that, prior to the altercation, appellant stated he "wasn't going to pay for someone else's problems" and he was going to "whoop [Pullin's] ass." On the morning of the assault, appellant told Pullin "you better get up, fat boy, it's time to fight[.]" Pullin explained that he was trying to get Officer Fonseca's attention when he "felt [appellant] rush up behind [him], and ... hit [him] in the back of the head[.]" Pullin explained, "I turned around and started to defend myself.... I kicked him off of me a couple times and just kept on ... pushing him away from me as he kept on continuing to hit me." Pullin recalled that appellant hit him "a couple more times" on the head. Pullin stated he suffered bruises on his face

and a laceration to his nose when it struck the ledge of the cell window. Pullin said he still has a scar on his nose and experiences numbness on parts of his head. The trial court admitted photographs depicting the injuries to Pullin's face and head. A hospital nurse testified that Pullin received stitches to treat the laceration on his nose and that Pullin also suffered a contusion to his temple.

According to medical records, Pullin was discharged less than an hour after arriving at the emergency room. When examined, Pullin was alert, oriented to person, place, and time, and cooperative. Pullin received stitches for a two-and-one-half centimeter laceration to his nose. The injury was further treated with Neosporin and an adhesive bandage

. Upon discharge, Pullin received instructions to take Tylenol every four hours as needed for pain, apply a topical antibiotic, and follow up with a physician in one week to have the stitches removed.

Appellant testified that the physical confrontation began before Pullin approached the cell window. Appellant stated Pullin aggravated him, and he asked Pullin "how are we going to take care of the matter?" According to appellant, the two then "engaged in a one-on-one battle." Appellant claimed Pullin tried to kick him and "rastled [him] down." Appellant further claimed that he fell to the ground, and that Pullin stomped on his hand. Appellant maintained that Pullin attempted to get the attention of a corrections officer only after Pullin "started to lose the battle."

Appellant provided a written statement to a Gonzalez County Sheriff's deputy. In his statement, appellant stated that he told a jailer "she was leaving [Pullin] in to be punished by me if she refused to punish him for his actions." Appellant explained that "she left an inmate in the faith [sic] of other inmates, which could have turned tragic all because of her poor judgment and the choice she made ... caused [Pullin] to be assaulted."

Gonzalez County Sheriff's deputy Travis Vega testified that "a fist or a hand ... could cause serious bodily injury, could leave somebody dysfunctional or ... have bad injuries." Chief Deputy Jeromy Belin testified that he has investigated several assaults resulting in broken facial bones

and facial reconstruction. Deputy Belin explained that "[t]he face is constructed of many small bones ... around your eyes and nose." He stated that "to receive several blows, especially in one concentrated area, is going to tenderize that area, and then you get a better chance of breaking something in that area." Deputy Belin opined that appellant used his fist in a manner capable of causing serious bodily injury.

The jury found appellant guilty on both counts. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his first two issues, appellant argues the evidence is insufficient to support his convictions for aggravated assault and assault family violence.

A. Standard of Review

"The standard for determining whether the evidence is legally sufficient to support a conviction is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ) (emphasis in Jackson ); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Brooks, 323 S.W.3d at 899 ; Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-finder's exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). We resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State, 767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).

We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.

B. Assault Family Violence

By his first issue, appellant argues "[t]he evidence is insufficient to support the conviction for Assault Family Violence ... as [appellant] and the alleged victim were not members of a household." Appellant contends that "the Texas Legislature did not intend for the term ‘household’ to encompass inmates in the county jail placed in the same cell, and a finding of such would lead to absurd consequences."

1. Applicable Law

Section 22.01(b)(2) enhances the offense of assault causing bodily injury from a class A misdemeanor to a third-degree felony. Agbogwe v. State, 414 S.W.3d 820, 840 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing TEX. PENAL CODE ANN. § 22.01(b)(2)(A) ). As relevant here, the offense is a third-degree felony if it is committed against "a person whose...